[With the House Judiciary Committee holding a hearing underway on H.R. 3261, the Stop Online Piracy Act, I'd like to share my thoughts on the bill on a more personal level.]

I’m passionate about the framework provided by copyright law because I am passionate about the expressive works that have been created in the US over the past 200 plus years because of this framework. From the silly to the sublime, to those that educate and those that entertain, these works have advanced our society, our culture, and our economy.

As a media and cultural consumer, I am excited by the increasingly innovative new ways I can access the news, movies, television shows, music, and other works I love online, and I strongly hope that those who create them can continue to create. I believe the Stop Online Piracy Act is both necessary and carefully crafted to ensure creators have effective recourse against sites that profit off misappropriation of their work.

Effective copyright protection, on a fundamental level, is a significant governmental interest, and one of the few enumerated powers of the federal government in the Constitution. In 1832, the Supreme Court said “To promote the progress of the useful arts is the interest and policy of every enlightened government.”1

Only two years later, Supreme Court Justice Thompson said in his dissent to the seminal opinion in Wheaton v. Peters, “In my judgment, every principle of justice, equity, morality, fitness and sound policy concurs, in protecting the literary labours of men, to the same extent that property acquired by manual labour is protected.”2

The history of copyright law presents a common theme of technological advancement bringing challenges to creators. In the past, we’ve seen these challenges with the introduction of new forms of media that allowed the recording of sound, images, and motion pictures; broadcasting in the form of radio and television; and even advancements in transportation that have made our world smaller and more connected. Today, creators face challenges to adapt to digital technologies and the Internet, which allows global communication on an unprecedented scale.

But no matter how rapidly technology advances, we should not lose sight of the fundamental principles of “justice, equity, morality, fitness and sound policy” that the protection of expression is built on.

In the words of James Madison, “The public good fully coincides” with “the claims of individuals” under copyright law.3 The introduction of new expressive works, whether in the form of books, music, films, television, or photographs, do much to advance this public good. They teach, entertain, and shed light on the human condition. So it is vitally important that those works are protected just as much online as they are offline.

Copyright Online

The Internet today looks vastly different today than it did in 1998, when the Digital Millennium Copyright Act was enacted. There was no Google, no YouTube, and no Facebook. The technologies that make rich, fully-interactive sites like these possible simply didn’t exist at the time. It would be hard to imagine a world wide web like this today. Today’s web allows a myriad of ways for people to engage in communication, commerce, social networking, entertainment, and learning. This is possible because the technology behind the web continued to progress, rather than being frozen in place. The same should be true of copyright law.

The consensus is that the DMCA has generally worked well for copyright holders and service providers. Its safe harbors shield service providers from liability for material uploaded by users where the service provider doesn’t have knowledge that the material is infringing, doesn’t receive a direct financial benefit from the infringing activity where the provider has the right and ability to control the activity, and acts expeditiously to disable access to uploaded material when it receives a notification of claimed infringement.

These notice-and-takedown provisions can be more effective and efficient for removing infringing material than litigation. They work well, in other words, for good faith, legitimate service providers who cooperate with copyright holders to detect and deal with online infringement.

They should not, however, provide cover for service providers who deliberately set out to build sites based on infringement — where, for example, the site was primarily designed to have no other purpose than to engage in or facilitate infringing acts, the site operator has taken deliberate action to remain unaware of a high probability that the site is used for infringement, or the site operator has taken affirmative steps to promote the use of the site for infringing acts.

The DMCA safe harbors were crafted to provide legal certainty in the new online world and protect service providers from the risk of liability for inadvertent or incidental infringement that they aren’t aware of or can’t monitor or control. They certainly weren’t crafted to protect against those who actively and deliberately design and operate their sites to profit off piracy.

In practice, the DMCA notice-and-takedown provisions are ineffective against sites like this. Many creators would find it a full time job to send notices against these types of sites. And the provisions are especially ineffective against sites that are directed at and easily accessible by US residents but located outside the US and dismissive of US law.

Sections 102 and 103 of the Stop Online Piracy Act fill this gap by giving the Attorney General and copyright holders new tools that directly target rogue sites. The goal of this legislation is not to completely eradicate online piracy, or allow copyright owners to “go back to the way things were.” Piracy is inherently part of the copyright landscape, and it will always exist in some form or another.

The goal is rather to allow creators and legitimate intermediaries to continue to develop sustainable business models that allow both widespread dissemination of content and the ability to be remunerated for investing time and money creating that content. Obviously, one of the big challenges facing creators is figuring out these business models, but that doesn’t mean the law shouldn’t also play a role.

Nearly forty years ago, former Register of Copyrights Barbara Ringer delivered an essay at a time when Congress was in the midst of reforming the Copyright Act to ensure it would remain relevant in the information age. Like today, it was a time of rapid technological change, with new stakeholders emerging and contentious debate. But though the technologies and players were different, Ringer’s words remain just as relevant today:

If the copyright law is to continue to function on the side of light against darkness, good against evil, truth against newspeak, it must broaden its base and its goals. Freedom of speech and freedom of the press are meaningless unless authors are able to create independently from control by anyone, and to find a way to put their works before the public. Economic advantage and the shibboleth of “convenience” distort the copyright law into a weapon against authors. Anyone who cares about freedom and authorship must insure that, in the process of improving the efficiency of our law, we do not throw it all the way back to its repressive origins in the Middle Ages.4

Copyright Law and Freedom of Expression

The introduction of the Stop Online Piracy Act has raised free speech concerns from various parties. It’s absolutely vital that the proposed bill — any bill for that matter — conforms with the First Amendment, which, I believe, it does. Noted First Amendment expert Floyd Abrams believes the bill is fully compatible with First Amendment protections as well, as he explained in a recent letter.

But it’s also important to keep in mind that copyright law itself serves an important role in furthering the goals of freedom of expression. This role has been recognized since the founding of the United States. As the Supreme Court said in Eldred v. Ashcroft, “the Framers intended copyright itself to be the engine of free expression.”5

Founding Father and second president John Adams once wrote, “Property must be secured, or liberty cannot exist.” Our fourth president, and the Father of the Constitution, James Madison added, “The advancement and diffusion of knowledge is the only guardian of true liberty.”

The Copyright Clause in the Constitution incorporates both these ideas, thus serving as a critical component in the protection of liberty. It gives Congress the power to secure to authors the exclusive rights in their writings in order to promote the progress of the useful arts and sciences. The importance of this power cannot be understated, and neither can the importance that these exclusive rights be truly secure in order to promote progress and spur diffusion of new expression.

That copyright law complements rather than conflicts with freedom of expression has been recognized many times since then.

For example, in an 1844 article appearing in The Reasoner magazine, the author writes: “If the public desire a really free press, they must not look to it as a source of taxation; and if they are anxious for truth, for elevated and elevating sentiments, for ideas matured by study and reflection, and an honest exposition of grievances, they must recognise original articles as property, and secure them against a plundering appropriation by a copyright.”

And in an 1880 treatise on the liberty of the press, the author characterizes the “valuable property in the hands of the author who composes and publishes his thoughts” as one of the forms “which the right of free speech and thought assumes.”

Perhaps the best examination of the complementary relationship between copyright and freedom of expression comes Barbara Ringer, who noted:

[I]t is important to recognize that the Statute of Anne of 1710, the first copyright statute anywhere and the Mother of us all, was enacted precisely because the whole autocratic censorship/monopoly/ licensing apparatus had broken down completely. As a result of the bloodless revolution taking place in the English constitutional system, basic individual freedoms, notably freedom of speech and freedom of the press, were becoming established under common law principles. The Statute of Anne marked the end of autocracy in English copyright and established a set of democratic principles : recognition of the individual author as the ultimate beneficiary and fountainhead of protection and a guarantee of legal protection against unauthorized use for limited times, without any elements of prior restraint of censorship by government or its agents.

She later observes, “It is striking that the second and third copyright statutes in the world — those of the United States of America and of France — were adopted immediately following the revolutions in those countries that overthrew autocratic government and were based on ideals of personal liberty and individual freedom.”

Prior restraint and censorship are antithetical to the First Amendment, but doing nothing in the face of rampant online piracy disgraces the goals of freedom of expression as well. The Stop Online Piracy Act helps secure creators’ rights online. Rogue sites jeopardize the ability of creators and firms to invest time and resources into creating new expression that advances society and culture. Current law is insufficient to address this harm; this bill would help restore the security of copyrights online.

Due Process

The rule of law is one of the most central and vital aspects of a free society. The US Constitution guarantees fair and impartial proceedings, protects citizens from arbitrary and unequalapplications of law, and limits what the government can do before depriving someone of life, liberty, or property.

But like freedom of speech, the concept of due process encompasses more than just Constitutional limits. Due process requires that rights have effective remedies available. Doing nothing violates the spirit of the rule of law.

The Stop Online Piracy Act strikes the correct balance between giving copyright holders an effective process for addressing sites whose only purpose is profiting off of the misappropriation of their works and ensuring that legitimate site operators are not punished.

I looked at the process of SOPA in more detail in previous posts: providing a walkthrough, showing why the bill will hit what it aims at, how it complements the DMCA, and why it merely provides new remedies for existing liability.

Conclusion

Sections 102 and 103 of the Stop Online Piracy Act represent a good start for creators who have long noted the injustice of others profiting from online piracy and escaping liability. Web services who are acting legitimately and legally should welcome rogue sites legislation because effective protection of creative labor is vital to a functioning online marketplace, and a functioning online marketplace benefits us all.

With this bill Congress can help secure the exclusive rights of creators. Doing so not only protects creators but also ensures that the development of innovative and sustainable services for consumers to access and enjoy media and content can continue.

Footnotes

  1. Grant v. Raymond, 31 US 218. []
  2. 33 US 591 (1834). []
  3. Federalist papers, No. 43. []
  4. Barbara Ringer, Demonology of Copyright (1974). []
  5. 537 US 186 (2003). []

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27 Comments

  1. “Anyone who cares about freedom and authorship must insure that, in the process of improving the efficiency of our law, we do not throw it all the way back to its repressive origins in the Middle Ages.”

    Correct.
    And by continually extending the duration of copyright we’re returning to the pre-Statute of Anne days when an “autocratic censorship/monopoly/ licensing apparatus” held control over all printed material.

  2. You’re falsely assuming that intellectual creations/ideas are candidates for property rights.

    • No, there’s nothing false about that assumption.

      • From a legal perspective, yes. From a moral perspective, the restrictions of copyright have become a disgusting pool of greed, economic incompetence, and insider lobbying and protectionism. As Macaulay predicted, the evils of copyright have grown to the point they may bring down the entire law with them – including any good it may have originally fostered.

        • “From a moral perspective, the restrictions of copyright have become”

          This is your opinion on the duration of copyright; one that stems from your personal hatred of copyright. Probably because it inconveniences you.

          It is not a statement on the actual concept of copyright.

          Your debate tactic is transparent.

  3. Well thought-out posts you’ve made on here. I wanted to share a letter I just sent to my representative on this Act:

    I am writing on my own behalf as a resident of your district in support of H.R. 3261, the “Stop Online Piracy Act”. I am a patent attorney practicing in the District, with degrees and experience in electrical and computer engineering.

    The Act has been the center of much concern in the Internet community — rightfully so, since it is good for citizens to take these matters seriously and determine how the law would affect their lives and their communities. After careful consideration, however, I believe that the Act has been artfully crafted to impact only those most egregious copyright infringers on the Internet.

    I do note one concern, which is that for this Act to be successful, it is critical that 103(b)(4)(A)(vii) — penalty of perjury for knowingly submitting a falsified notice — be given significant teeth. These notices will at times be utilized against small businesses, many of which reside in your district, and these businesses will need to be protected from those who would seek to willfully harm them in violation of those provisions. I ask that the Attorney General be prepared to assist small businesses who have been the target of such actions on inappropriate grounds.

    Payment processors and advertisers can avail themselves of the immunity provisions not only by taking action to cut off services, but through receipt of a counter-notification. It is difficult to imagine that any payment processor or advertiser would actively want to cut off a revenue stream rather than simply obtain immunity via a simple counter-notification. Calls of “censorship” or the ultimate destruction of commerce on the Internet as a consequence of this Act are unfounded — the safe harbor provisions provide adequate balances of interests that will not affect legitimate businesses, or even those with minor illegitimate uses propagated by their users.

    I would be happy to discuss any of this at further length with you, and appreciate your consideration of my comments. It is important to get this right. We don’t want to hurt the YouTube or RapidShare of tomorrow — businesses that are able to thrive specifically because of the DMCA safe harbor provisions — but neither can we allow the massive scale of copyright abuse online to continue.

  4. I agree stopping online piracy is an admirable goal. But I think you have failed to recognize the potential for abuse and extreme side effects the Act will allow

  5. The movement to save piracy is two-pronged:

    One, primarily by the vampire squid known as Google. Google sells advertising and they make gobs of money from piracy. They have created astroturf groups and paid off “think tanks” and blogs to bombard Washington every time Congress addresses piracy. Then these entities instruct the minions mentioned below to scream “censorship! break the internet! free speech!”, and many spineless congresspeople wilt like spaghetti.

    The second prong comes from scaring the pirates themselves. These people are immediately turned into useful activists to help keep the money flowing to the parasitic businesses and corporations like Google. These people, not wanting to lose their gravy train, are used and herded together via sites like Techdirt, Torrent Freak, Tumble and Reddit.

    The entire approach was made famous by Goebbels: “The bigger the lie, the more people believe it.”

    Worrisome to see that some in Congress are swayed by 3rd Reich propaganda tactics

    • The movement to save piracy is two-pronged:

      One, primarily by the vampire squid known as Google. Google sells advertising and they make gobs of money from piracy. They have created astroturf groups and paid off “think tanks” and blogs to bombard Washington every time Congress addresses piracy. Then these entities instruct the minions mentioned below to scream “censorship! break the internet! free speech!”, and many spineless congresspeople wilt like spaghetti.

      The second prong comes from scaring the pirates themselves. These people are immediately turned into useful activists to help keep the money flowing to the parasitic businesses and corporations like Google. These people, not wanting to lose their gravy train, are used and herded together via sites like Techdirt, Torrent Freak, Tumble and Reddit.

      This is the situation to a ‘T’.

      Well said.

    • Reddit did not spend hundreds of millions of dollars lobbying Congress. Neither did Google.

      Your Third Reich analogy is interesting; presumably, you can fit the opinions of those who created the internet, those who manage the internet, and even Sandia National Laboratories into your imagined fascism.

      How many DNS experts were testifying in favor of the MPAA, again?

      • I don’t know what the agenda is with those folks; I do know that DNSSEC won’t even be an issue till the next decade, so saying SOPA would break DNS is a flat out lie.

        Care to respond, “Steve”?

        • And btw, Google and its shadow astroturf groups spent more lobbying Congress than any of the record labels or movie studios.

          It’s just that they’re on the wrong side of the issue: the illegal side.

  6. This post highlights the difference between proponents and opponents of this bill. You see piracy as the great Godzilla out to destroy legitimate business. I see piracy as a pesky fly that legitimate business can adapt to and work around. On the other hand, I see the legacy content industries as unwilling to adapt and looking for the government to destroy healthy competition provided by new consumer technologies. You see the legacy content industries as purveyors of creativity under siege.

    I really have no faith that the legacy content industries will not abuse this bill to stifle creativity and I have good reason for this lack of faith.

    • You’ve got it exactly right!

      Remember the VCR? The “Boston Strangler” out to kill media? Now, of course, the VCR is all good and friendly. Look at Viacom’s lawsuit against Youtube – they still haven’t gotten the message that Youtube is now in the “a-ok” club to the content freaks. If this bill passes, we can expect it to be used for its real purpose: stifle competition by preventing any competition to the threatened media monopolies.

      Pirates? They won’t be impacted and won’t care, but independent artists will take it in the shins.

      • Which one of you is the Mike Masnick sock puppet?

        Or is it both?

        • No sock puppet or any other kind of puppet here; just a DMCA agent for a responsible service provider who goes above and beyond the requirements of the DMCA to eliminate unauthorized sharing and getting tired of the entertainment industry telling us we aren’t doing enough while they send out notices merely to limit competition. Sad but true.

          • Please give us some examples.
            Let us know how often it happens, as it is completely illegal to abuse the DMCA in the manner you describe.

    • “to destroy healthy competition provided by new consumer technologies.”

      Businesses built on profiting from infringement are not competition, they are parasites — parasites that will soon be stamped out once their domains are wiped off of the internet and their income is strangled off at the source.

  7. “Pirates? They won’t be impacted and won’t care, but independent artists will take it in the shins.”

    B.S.,
    us independents are the ones that are hardest hit, and can least afford it.
    How is stealing from the artist directly suporting said artist?
    How much money has TPB or any pirate for that matter contributed in developing new acts?
    Answer: NONE

    How much money has GOogle and other BiG Tech multinational companies profited FROM piracy?
    BILLiONS

    Don’t be fooled. This is a David and Goliath fight. Us little content creators vs. the Multinational Big Tech companies.

    • Perfectly said.

      I’ve had this conversation with so many folks: The independents, the ones that have always been the innovators, are without question the ones who’ve been hit the hardest by piracy. They simply didn’t have the cushion to fall back on that big labels did.

      in these conversations, to a man, we agree that this is why music stagnated so obviously in the last decade. Artists didn’t have the backing to keep at it and survive, and the indie labels didn’t have the sales/revenue to help them.

      Direct cause and effect situation, and a pure example of piracy destroying culture, and by extension, society.

      • Music has “stagnated so obviously in the last decade”??

        What basis do you make for that claim? I honestly don’t know what you are referring to. In comparison with other decades, there has been more music produced than ever in the past decade with more people having access to it than ever.

        Some example sources for this info:

        http://blog.tunecore.com/2010/10/music-purchases-and-net-revenue-for-artists-are-up-gross-revenue-for-labels-is-down.html

        http://www.npr.org/templates/story/story.php?storyId=121023882

        • So what if more music is being made now than ever before?

          McDonald’s makes more burgers now than ever before.

          Quantity does not equal quality.

          • I appreciate your tacit admission that there is more music being both produced and heard by end users than ever before. So it certainly hasn’t “stagnated” in the last decade from that perspective. I hope that readers take note here.

            I also don’t see how you can make your claims as to “quality”. I don’t know anyone who would agree with you that today’s music is uniformly of lesser “quality” than in the past (whatever that might mean). It may simply be in your case that you have to make more of an effort to find it since there is much more product to choose from these days with less centralized distribution channels.

            I’m not sure if you intend it as such, but your argument comes across as: “I personally don’t like the music I am hearing these days, therefore I am going to support the Congressional bill in the hopes that it will make artists produce things I like more.”

            Do you have any arguments that are more objective in nature? Or should we be passing laws which cater to your personal aesthetic tastes?

          • Ask yourself a question:

            Even though taste is subjective, what musical acts that originated in the past decade are worthy of going to the RnR Hall of Fame? Or will be remembered 20 years from now?

            Prior to the year 2000, you have many acts that can be considered that.

            Record labels are venture capitalists. They provide a way for musicians to not have a day job and concentrate on their art.

            Piracy removes revenue from musicians and labels. Musicians are forced to go on the road or take second jobs. No musician alive will tell you that that scenario is conducive to writing songs or being more creative.

            There are real world repercussions to piracy that piracy apologists are either ignorant of, or choose to ignore so as to salve their conscience.

          • Even though taste is subjective, what musical acts that originated in the past decade are worthy of going to the RnR Hall of Fame? Or will be remembered 20 years from now?

            The question is silly – NO act is EVER worthy of RnR Hall of Fame after only 10 years of performance. None. The entire point of the RnR Hall of Fame is to salute the acts that have proven to stand the test of time – far longer than a mere 10 years.

            As to those acts remembered 20 years from now? Who knows? Nobody can predict cultural tastes 20 years out. I know that I personally will be remembering MGMT, PTWKAF and Moby. But other individuals will personally remember other acts according to their own tastes – as it should be. I also don’t know why you focus exclusively on Rock & Roll since that represents only a small sliver of the music currently produced.

            But this is all taking focus away from the question of determining if “music has stagnated in the last decade”. Of course it hasn’t. Anyone who remotely argues otherwise is simply being irrational. The notion that music has “stagnated” just because you personally don’t feel that there are musical acts that compare with The Beatles or (insert name of Kent’s personal favorite band that happens to be the Rock & Roll Hall of Fame) at this specific point in time is not worthy of serious comment. Everyone will be able to see what a weak argument that is.

            The current music scene is the most vibrant it has ever been. The fact that you won’t allow yourself to recognize that fact does not make it any less of a fact. But I’ll be happy to leave you with the last word on this – knowing that any response you give will only show to the average reader the weakness of your position on this particular claim and that it stems solely from your own aesthetic preferences and not from any semblance of fact.

  8. I find it striking how the console video game industry, which is comparatively least effected by copyright infringement because of the inherent technological difficulties of broadly pirating console games, has made enormous gains and strides in not only innovation but profits as well, effectively outpacing even the behemoth movie industry. Although this is just a bystander’s correlation, it would be interesting to see how much of a correspondence it actually may be. I find it funny when someone arguing in support of copyright infringement is asked to apply their points of view to the console gaming industry ~ they get a puzzled look and have to wonder a bit why their views are valid for music/movies, but not necessarily the latest Xbox 360 game. Unfortunately, piracy support seems to be a matter of selective culture these days, not one of reasonable thought.

    In any case, as an independent artist myself I whole-heartedly agree with this article. It’s too long been the case where the content-creators have had to undertake the enormous task of policing their own works online and making very little of a dent in protecting themselves from piracy. Right now the immediate damages and flagrant illegal activities online are very publicly visible and real, and steps needs to be taken to stop it.

  9. Pingback: If the DOJ can already seize “rogue” websites, what does SOPA add besides liability for bystanders? « Daniel Miller . Law . Tech . Games

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